The fight for access to Moody Beach defies precedent


WELLS, Maine — Owners of beachfront properties along the Maine coast may want to pay close attention to a new lawsuit that seeks to reclaim certain private beach areas for public access.

Benjamin E. Ford, partner at the new Portland-based law firm Archipelago Law, said it filed a lawsuit Thursday seeking to overturn a decision made three decades ago by the Supreme Court of Maine. The move, Ford said, was “a historic mistake” that “locked up thousands of miles of Maine’s coastline.”

“The Maine Supreme Court’s decision in the so-called Moody Beach cases has only led to ridiculous confusion, conflict and litigation over whether seaweed is more like a worm or a tree. “Ford said in a statement. “This mess was created by lawyers and judges and it needs to be fixed by lawyers and judges.”

Plaintiffs’ attorneys held a press conference Thursday afternoon at Moody Beach in Wells to announce the trial, where they provided copies of the complaint. The press conference site is where a private stretch of Moody Beach adjoins the public North Beach in Ogunquit.

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The plaintiffs’ team said their goal is to end the harassment and intimidation of beachgoers along the Maine coast.

“Clams, wormers, algae pickers are harassed,” Ford said at the press conference. “Some are even being evicted from the land their families have worked for generations, all because people don’t want to look out their windows and see someone working for a living.”

“This case is not about the rich versus the poor,” Ford added. “This case isn’t about people from Maine versus people from Away. The owners of these homes aren’t greedy, they’re not selfish. They were just told they owned something that can never be owned. .”

What are the Moody Beach cases?

A row of houses along Moody Beach in Wells, shown here in September 2017, take advantage of a stretch of sand that has been identified as a private beach.

In 1984, property owners along Moody Beach in Wells accused local and state authorities of failing to treat misbehaving bathers as trespassers.

The owners asked the court to prohibit the public from using the beach in front of the private homes, including not only the dry sand but also the intertidal zone, for general recreation, according to a report on public access to the coast produced by the Maine Sea Grant College Program, the Maine Coastal Program and the Wells National Estuarine Research Reserve.

In 1986, the Supreme Judicial Court of Maine ruled that the colonial ordinance enacted in the 1640s was part of the common law of Maine. This ordinance had recognized private ownership of beachfront property as including the intertidal zone, extending to the low tide mark. It had also recognized the public’s right to fish, hunt and sail on private tidal lands, according to the report.

In 1989, in Bell v. City of Wellsknown as the Moody Beach case, the state’s highest court ruled that the only public rights recognized in the intertidal zones are those defined in the colonial ordinance: fishing, hunting and navigation .

This means that beachfront property owners along the coasts of Maine have property rights up to the low tide zone, except for an easement allowing the public to engage in these three permitted activities.

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“The case has become a symbol of the conflict between public and private rights on the shore in Maine, and is cited as authority for the general proposition that the public has only very limited rights in the intertidal zone (the zone between high and low tide),” the report said.

In most other states, private property rights extend only to the high water mark. Maine and Massachusetts are outliers.

While ownership interests in submerged land and ocean areas along the coast of Maine are relatively clear, ownership rights in the intertidal zone have been the subject of dispute and litigation, leading to decisions by the Supreme Court of Maine who established who has what rights in the area between the high and low water mark.  This illustration is part of a report produced by the Maine Sea Grant College Program, the Maine Coastal Program/Department of Agriculture, Conservation and Forestry, and the Wells National Estuarine Research Reserve.

Orlando Deloguprofessor of law emeritus at the University of Maine School of Law, author of the book “Maine beaches are public property“, joined the press conference on Thursday.

“Maine followed Massachusetts off a cliff.” said Delogu. “We want the Maine courts to correct the mistake they made 32 years ago, and if they don’t, we have every right to go to the Supreme Court…and that the Supreme Court tell the owner of the highlands that you don’t own the intertidal land, you never owned the intertidal land.”

A sign posted on the Wells/Ogunquit city line marks the boundary between public and private beach Thursday, April 22, 2021. A new lawsuit seeks to overturn court precedent that allows private property rights in intertidal areas along from the shores of Maine.

Linda Wagner, who has lived near Moody Beach at the south end of Tibbetts Avenue for 25 years, said she hopes to be alive to see the day that court ruling is overturned.

Wagner said she sat at the low-water mark a few years ago and someone who rented a house nearby asked her and her grandchildren to leave and threatened to call the family sheriff.

Wagner said she bought the land on Tibbetts in 1990 and at that time she was not worried about being evicted from the beach. But, over time, owners and tenants of private beach properties have become less and less welcoming, she said.

Who is suing whom?

Benjamin E. Ford, a partner at the new Portland-based Archipelago Law firm, holds a news conference Thursday, April 22, 2021, at the Moody Beach border in Wells and North Beach in Ogunquit, after filing a complaint that he stated aims to reclaim the intertidal zone of Maine's beaches for public access.  If successful, the case would reverse a decision made three decades ago by Maine's Supreme Judicial Court.

The plaintiffs and defendants in the lawsuit filed Thursday live, own property or operate businesses along the coast of Maine, according to Mark Robinson, a spokesman for the plaintiffs.

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The parties include 23 individual plaintiffs suing 10 people and beachfront property owners who “were manifestly complicit in actions that resulted in citizens of Maine being threatened, harassed and driven from lands belonging to them,” according to an announcement by the plaintiffs.

The plaintiffs include Peter and Kathy Masucci of Wells and Lori and Tom Howell of Eliot, according to a copy of the complaint provided by the plaintiffs. Defendants include three entities in Wells: Judy’s Moody LLC, OA2012 Trust and Ocean 503 LLC.

Robinson said Ford is filing the lawsuit Thursday morning in Cumberland County Superior Court.

A sign on the boundary between North Beach in Ogunquit and Moody Beach in Wells, shown here in September 2017, informs bathers that the beach on the left is private and the beach on the right is public.

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